In Depth

A sharply divided Indiana Supreme Court decision that a family may sue the state’s child protection agency for negligence
is sure to resonate within the Department of Child Services, attorneys familiar with the case said.

“The whole purpose of this appeal was to try to hold the Department of Child Services accountable for its failure to
abide by statutory requirements,” said Adam Sedia of Rubino Ruman Crosmer & Polen LLC of Dyer, who successfully
argued the case decided in a 3-2 opinion Nov. 26.

Sedia will continue to represent the family in the case that’s been remanded to Vanderburgh Superior Court, where a
status conference is scheduled for Jan. 7. At issue is DCS’ failure to disclose to parents allegations of sexual abuse
of their 2-year-old daughter by a 12-year-old relative. The parents knew of allegations that the relative had abused a 4-year-old
son, but they weren’t informed by DCS that the juvenile who was adjudicated delinquent also said he inappropriately
touched their daughter.

Evansville police learned of the allegations regarding the daughter and reported them to DCS as required under the child
abuse reporting statute, I.C. 31-33-6-1. But DCS didn’t notify the parents about the abuse allegations. Sedia said the
mother learned of those allegations more than a year later during an email exchange unrelated to DCS.

Chief Justice Brent Dickson, writing for the majority joined by Justices Steven David and Robert Rucker, said that the failure
of DCS to disclose the abuse allegations to the parents gave them a private right of action against the agency under the Tort
Claim Act.

The plaintiffs “contend that DCS’s inaction with respect to the separate report of abuse to Daughter hindered
their ability to obtain proper treatment. The facts, which we must construe in favor of the plaintiffs as the non-moving party
on summary judgment, do not fall within the circumstances granting immunity under the plain words of the statute. …
Accordingly, summary judgment is not proper,” Dickson wrote.

“Because plaintiffs’ claims against DCS do not result from the ‘initiation of a judicial or an administrative
proceeding,’ DCS is not immune under Indiana Code Section 34-13-3-3(6), and summary judgment in favor of DCS is therefore
improper,” the majority held.

While reversing the Vanderburgh County court’s grant of summary judgment for the agency, justices affirmed summary
judgment in favor of Evansville police and the Vanderburgh County Prosecutor’s Office in F.D., G.D., and T.D. b/n/f
J.D. and M.D.; and J.D. and M.D., individually v. Indiana Dept. of Child Services, Evansville Police Dept., and Vanderburgh
County Prosecutor’s Office, 82S01-1301-CT-19.

Sedia believes the majority applied strict construction to determine DCS had an affirmative duty under I.C. 31-33-6-1 to
notify the parents about the abuse allegations. “Based on the plain language, DCS isn’t afforded immunity,”
he said. “I think the Legislature imposed this duty on DCS for a reason.”

But Justice Loretta Rush wrote a dissent joined by Justice Mark Massa that didn’t find anything of the sort.

“In the absence of immunity, Indiana law requires us to analyze whether the Legislature intended the violation of the
Notice Statute to give rise to a negligence action. Applying that analysis, I can find no such legislative intent here,”
Rush wrote.

“I do not condone DCS’s egregious conduct of allegedly not notifying parents of their child’s abuse, but
not every breach of a statutory duty provides plaintiffs with a negligence action. … I conclude DCS is immune from
liability, and even if it weren’t, the Notice Statute would not provide plaintiffs with a private right of action,”
she wrote.

The decision split the court’s experienced juvenile court jurists – David and Rush. Supreme Court spokeswoman
Kathryn Dolan said neither would comment on the ruling beyond the written opinions.

Attorney General Greg Zoeller’s office defended the suit, and Zoeller said in a statement that under the immunity principle
behind Indiana’s Tort Claim Act, “taxpayers who did nothing to cause a situation ought not be held financially
responsible without limit for actions of government employees.

“We respectfully disagree with the narrow scope of the Indiana Supreme Court majority’s opinion as to the State
and immunity. Whether liability exists is a separate question that will be determined by the trial court. The Office of the
Indiana Attorney General supports the prompt reporting of and prompt investigation of allegations of child abuse and neglect
so that children are not subjected to further victimization, consistent with statutes the Legislature has passed,” Zoeller
said.

Kaarin M. Lueck, a public defender in Richmond who writes the Indiana Juvenile Justice blog, said the impact of the decision
remains to be seen, but the facts of this case appear to be narrow. “It’s a tragedy, and hopefully it doesn’t
happen often,” she said.

“This case is another aspect of increased scrutiny of DCS processes and the expectation of no mistakes given what is
at risk,” Lueck said, noting reforms within the agency in the last couple of years.

“In the world of all (Child in Need of Services) and delinquency cases, this scenario is going to play out in a small
amount of cases,” Lueck said. “Usually, when there is an allegation of sex abuse, the child-victim is interviewed,
and the parent is aware of the CPS assessment.

“By statute, DCS’ investigation can and usually will be shared with the prosecutor’s office for possible
criminal or delinquency allegations,” she explained. “If the alleged perpetrator is adjudicated to be a delinquent,
he or she is generally put into rehabilitative services that usually involve revealing any other potential victims. The delinquent
child may be given a diagnostic polygraph to aid in this process. If any other victims are revealed, the therapist is required
to notify DCS of new child abuse allegations. The assigned Child Protection Services worker will conduct their investigation.
That is the point where the notification statute – I.C. 31-33-18-4 – requires that the parent, guardian or custodian
be notified of the assessment in this scenario.”

Sedia said there was deposition testimony in this case that the failure to notify was characterized as, “It just fell
through the cracks.” He’s uncertain whether the high court’s decision may result in other similar claims
against DCS.

“There’s always the freak case, and I hope this is it,” Sedia said. “I don’t know how many
similar situations there are and have been, but it certainly presents something for the Department of Child Services to take
caution of in the future.”

Lueck said the decision will force DCS “to figure out how to deal with these problems without opening up the floodgates
of civil litigation.”

“As big a machine as DCS has become, how do you ensure this kind of thing doesn’t happen again?” Lueck
said. “This cannot be the only time there’s been a mistake.”•

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Conversations

13 Comments

My case has been open for almost 2 years and everytime are bout to get them back they add somethin else for is to do I bee
thru 2 drug programs and my kids were not taken for drugs got a job and a place they said it was fine bout to get them back
they said the house wasn't suitable for them but they had been comin to visit and even let them stay over night now they are
bout to make me sigh my rights away I have had 4 case workers now

Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning
to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter
lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would
be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down
the drain.You know all I want is my babies home.I've done everything they have
even asked me to do.Now their saying I can't see my grandchildren cause I'M on
a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant
in my tissues and nervous system it also causes a ,blood clotting disorder.even
with the two blood thinners I'm on I still Continue to develop them them also.DCS
knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone
help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying
about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. (
And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only
serious callers

My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing
drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I
can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle
in the US Constitution, which exists to limit Government power and to ensure Government accountability

David LloydAugust 29, 2014 1:17 PM

I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY
Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power
and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases
in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent
people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and
given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest
infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of
reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me,
that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It
is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I
question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable.
No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness,
and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes
all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded
by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny
eventually crumbles to nothing.

PEOPLE ALWAYS WANT TO REPORT US FOR WHATEVER REASON ON FAKE CLAIMS TO DCS

PATTYJuly 30, 2014 6:40 PM

YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE
ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL
AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL
WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD
GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT
SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED
APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN
ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE
BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

I had my kids taken away over my sister and husband Dcs has lien over and over again I had been taken meds which had cause
me to have false positive test and my Dcs worker won't take my paperwork from my doctor that said that so they keep saying
I have drugs in my body my three little kids are in Foster home my four year old has had his mouth cut open and had to have
stiches bruise all over his body which I have pictures of my two old has had a big black eye with a cut down his face my one
year old has mark's on her face cut mouth and Dcs doesn't do anything about it my 15 year old is with his dad and my 16 year
was with his dad their dad is his wife steal from Walmart sear and other place they do drugs and Dcs doesn't care they let
them they now go to Doctor hospital anywhere else to get pain pills my son gets a check every on-the-job of 721 and his dad
doesn't use any of it foe my son I had to go buy my son food cause they didn't have any my two son dad wife hit my 17 and
lefted marks on him and Dcs didn't do anything about it they was going to put a lock on the food so my kids couldn't eat without
asking and are now living with his wife dad cause they said they couldn't pay the Rent which is only 500 answer he works and
make 9 an hour and work's 12 hour a day six days a week I need help I can give you my number There is slot more going on it's
just easier if we talk over the phone or I'm person (317)628-3922 please help keep these are my kids and I Love them more
than anything

I had my kids taken away over my sister and husband Dcs has lien over and over again I had been taken meds which had cause
me to have false positive test and my Dcs worker won't take my paperwork from my doctor that said that so they keep saying
I have drugs in my body my three little kids are in Foster home my four year old has had his mouth cut open and had to have
stiches bruise all over his body which I have pictures of my two old has had a big black eye with a cut down his face my one
year old has mark's on her face cut mouth and Dcs doesn't do anything about it my 15 year old is with his dad and my 16 year
was with his dad their dad is his wife steal from Walmart sear and other place they do drugs and Dcs doesn't care they let
them they now go to Doctor hospital anywhere else to get pain pills my son gets a check every on-the-job of 721 and his dad
doesn't use any of it foe my son I had to go buy my son food cause they didn't have any my two son dad wife hit my 17 and
lefted marks on him and Dcs didn't do anything about it they was going to put a lock on the food so my kids couldn't eat without
asking and are now living with his wife dad cause they said they couldn't pay the Rent which is only 500 answer he works and
make 9 an hour and work's 12 hour a day six days a week I need help I can give you my number There is slot more going on it's
just easier if we talk over the phone or I'm person (317)628-3922 please help keep these are my kids and I Love them more
than anything

DCS TOOK MY 17 YEAR OLD SON AWAY STATING I NEGLECTED HIM BECAUSE I DIDN'T PICK HIM UP FROM JUVENILE AFTER THREE HOURS. I CALLED
THE POLICE TO HELP ME BECAUSE HE WAS FLIPPING OUT PUNCHING WALLS, CURSING AND I COULDNT calm him down. The police came and
my son acted as if he had a gun or something so they locked him up. I explained to the juvenile that my son needs help; mental
help and they thought that I just didn't want to be responsible for my child but the fact is that my son is A WARD OF THE
STATE BECAUSE I WAS SUPPOSED TO HAVE NEGLECTED HIM AND NOW HE IS AT THE FOSTER PARENTS HOUSE DISPLAYING THE SAME ACTS THAT
I TRIED NUMEROUS TIMES TO GET HIM HELP FOR. Bottom line is the FOSTER DAD doesn't want my child and now DCS want to just send
him home without any counseling nor psychiatric evaluation. I told DCS that my child is doing drugs and so did his foster
dad. I now have a abuse/neglect charge against me that is hindering me gaining employment and I was never notified by DCS.

CLARK CO DCS INTENTIALLY MISLED COURTS AND NEGLECTED MY CHILDREN THEMSELVES BY PLACING THEM IN WORSE SITUATION AND NOT FOLLOWING
THERE GUIDLINES AND LAWS FABRICATED EVIDENCE AND VIOLATING MY PARENTIAL RIGHTS 4 and 14 AMENDMENT OF THE US CONSTITUTION.
FAILED TO CONDUCT PROPER BACK GROUND CHECKS PLACED MY GIRLS WITH INDUVIDUAL THAT HAD ALREADY LOST HER 3 KIDS DUE TO DCS. I
NEED SOME HELP IVE CONTACTED THE OMBUDSMAN FOR INDIANA AND MADE COMPLAINT I NEED HELP SEEKING LEGAL REPRISENTATION IN GETTING
MY BABIES BACK AND TO STOP THIS ABUSE THAT DCS IS CAUSING TO OUR CHILDREN. HELP PLEASE

my step daughter has been beaten by her father..who with holds visits from us. she was finally taken from his home. we were
made aware of all of this when my wife was made aware of a bench warrent and turned herself in. she was shown pictures of
her daughter beaten black and blue and hand prints up and down her legs. DCS claims they tried to contact us and even had
our number but there is no record of them contacting us...what can we do in this case. they wont give her daughter to us because
they couldnt contact us...or rather didnt contact us.

Our son was taken at 4monthes old they said he was taken because of neglect and abuse and not being cared for but this is
not the situation they keep changing things on the papers and tricked us into signing a CHINS paper we Need HELP we want our
son back its been almost 10months and still the same crap

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